§ 7-301. Purpose and definitions.

(a)

Purpose and intent. The purpose and intent of this article is to create a procedure for licensing for any pain management clinics or pharmacies that intend to prescribe or dispense or which are presently prescribing or dispensing any schedule II substances, as defined herein.

(b)

Definitions. For the purpose of this article the following definitions shall apply:

Operator: A person who engages or participates in any activity that is necessary to or that facilitates the operation of an establishment that is a pharmacy or pain management clinic.

Pain management clinic: A privately owned pain management clinic, facility, or office which advertises in any medium for any type of pain management services or engages a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, and which is required to register pursuant to F.S. § 458.3265(2010) or F.S. § 459.0137(2010), as amended from time to time. A physician that is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications for the treatment of pain shall also be defined as a pain management clinic. This definition shall not include any clinic or medical practitioner's office that is affiliated with a hospital, hospice or other facility for the treatment of the terminally ill in Broward, Palm Beach or Miami-Dade counties, nor shall it include a pain management clinic or practice which is conducted within a facility licensed under F.S. Ch. 395, or any successor statute.

Pharmacy: A facility, office, building, or other establishment which engages in the dispensing of prescription substances. An exempt pharmacy shall not be required to obtain a pain medication license.

Exempt pharmacy: A facility, office, building, or other establishment which engages in the dispensing of prescription substances and which meets one (1) of the following criteria:

(1)

The facility, office, or building is located in an establishment where physicians provide surgical services;

(2)

The facility, office, or building is owned or leased by a publicly held corporation whose shares are traded on a national exchange and whose total assets at the end of the corporation's most recent fiscal quarter exceeded fifty million dollars ($50,000,000.00);

(3)

The facility, office, or building is affiliated with an accredited medical school where training is provided for medical students, medical residents, or fellows;

(4)

The facility, office, or building is owned by a corporate entity exempt from federal taxation under 26 U.S.C. s. 501(c)(3);

(5)

The facility, office, or building is licensed as a facility pursuant to F.S. Ch. 395;

(6)

The facility, office, or building is owned or operated by a public agency; or

(7)

The facility, office, building, or pharmacist:

a.

Does not purchase, store or dispense more than an aggregate of five thousand (5,000) unit doses of schedule II substances as defined in section 7-301 on a monthly basis. The pharmacy may exceed the monthly aggregate by up to ten (10) percent provided the pharmacy's annual aggregate of schedule II substances does not exceed sixty thousand (60,000) unit doses; and

b.

Has no principals, officers and/or pharmacists with criminal convictions under F.S. Ch. 893 within the last ten (10) years; and

c.

Executes an agreement for pain medication license exemption in substantially the format attached hereto as Figure X-1 that will result in the revocation of the local business tax receipt and inability to apply for any local business tax receipt within the city for the next twenty-four (24) months upon determination by the city manager or his/her designee based on the recommendation of the police chief of any violation of the agreement; and

d.

Files a monthly affidavit by the seventh day of each month for the previous month with the police chief identifying the types and quantities of schedule II substances as defined in section 7-301:

(i)

That were purchased during the reporting period, and

(ii)

That were sold during the reporting period.

(iii)

That were stored during the reporting period.

e.

The owners and operator of the facility, office, or building have not had a pain medication license suspended, revoked, non-renewed or denied in the previous twenty-four (24) months.

(8)

The facility, office, building or pharmacist is located within a retail store that has a minimum of forty thousand (40,000) square feet of retail and that maintains more than twenty (20) locations within the State of Florida.

Schedule II: A substance that has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence and as defined in F.S. § 893.03, as amended from time to time. For the purposes of this Article, the following substances are exempted from the definition of Schedule II substances and shall not be counted in the monthly or annual aggregate unit doses: Nabilone, Phenyclidine, 1-Phenylcyclohexylamine, 1-Piperidinocyclohexanecarbonitrile, Amobarbital, Amphetamine, Glutethimide, Methamphetamine, Methylphenidate, Pentobarbital, Phenmatrazine, Phenylacetone, and Secobarbital.

(Ord. No. 512-11-B, § 3, 6-28-11)

Figure X-1

AGREEMENT FOR PAIN MEDICATION LICENSE EXEMPTION

This Agreement for Pain Medication License Exemption ("Agreement") is made and entered into between____________and the City of Sunrise, Broward County, Florida (the "City") this____________day of____________20____________.

WHEREAS, is the lessee/owner (hereinafter "Applicant") of that certain property located at (the "Property"), in the City; and

WHEREAS, Applicant pursuant to Section 7-301 of the City Code, has represented to the City that it is exempt from the pain medication license as required under the provisions of Chapter 7, Article X, Section 7-301(b) definition of "Exempt Pharmacy" number 7 of the Code of the City of Sunrise and that Applicant will not purchase, store or dispense more than a monthly aggregate of five thousand (5,000) unit doses of schedule II substances as defined by Section 7-301 of the City Code. The Applicant may exceed the monthly aggregate by up to ten (10%) percent provided the Applicant's annual aggregate of schedule II substances does not exceed 60,000 unit doses; and

WHEREAS, Applicant, pursuant to Section 7-31 of the City Code, has applied for a City Local Business Tax Receipt ( the "LBTR") for occupation and use on the Property as a retail pharmacy (the "Project"), under and pursuant to the provisions of Section 7-27 of the Code of the City of Sunrise; and

WHEREAS, the City, by the adoption of Ordinance No. 512-11-B, on June 28, 2011, provided for pain medication license requirements for "pain management clinics" and "pharmacies", as defined in said Ordinance; and

WHEREAS, the City is concerned about the proliferation of schedule II substances at pain management clinics and pharmacies; and

WHEREAS, Applicant believes that its pharmacy is exempt from the pain medication license requirements of Ordinance No. 512-11-B, adopted on June 28, 2011, pursuant to the provisions of Chapter 7 Article X of the City Code; and

WHEREAS, Applicant wishes to give the City assurances that Applicant will not purchase, store or dispense more than a monthly aggregate of five thousand (5,000) unit doses of schedule II substances as defined by Section 7-301 of the City Code. The Applicant may exceed the monthly aggregate by up to ten (10%) percent provided the Applicant's annual aggregate of schedule II substances does not exceed 60,000 unit doses; and

WHEREAS, Applicant agrees to provide the City a list of all principals, officers and/or pharmacists at the Project Site for the City to perform criminal background checks on all such individuals. Applicant further represents that no principal, officer or pharmacist has been convicted of a violation of Florida Statutes Chapter 893 within the last ten (10) years; and

WHEREAS, the City is willing to agree to the exemption to Section 7-301 of the City Code for the Applicant provided the City receives legally enforceable assurances that Applicant will not purchase, store or dispense more than a monthly aggregate of five thousand (5,000) unit doses of all combined schedule II substances as defined by Section 7-301 of the City Code. The Applicant may exceed the monthly aggregate by up to ten (10%) percent provided the Applicant's annual aggregate of schedule II substances does not exceed 60,000 unit doses; and

WHEREAS, the City is willing to agree to the exemption to Section 7-301 of the City Code for the Applicant provided the City receives legally enforceable assurances that Applicant will defend, indemnify and hold the City harmless against any and all claims, demands, damages or suits that may arise from the issuance of the LBTR; and

WHEREAS, Applicant understands and agrees that the City may and/or will utilize all available means to verify compliance with this Agreement, including documents from any Federal, State, and local agencies.

NOW, THEREFORE, in consideration of the above premises, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the undersigned hereby agrees as follows:

1.

In addition to any of the requirements of Section 7-32 and 7-42 of the City Code, Applicant on behalf of itself and on behalf of any its assigns or sub-lessees voluntarily agrees that it will not purchase, store or dispense more than a monthly aggregate of five thousand (5,000) unit doses of all combined schedule II substances as defined by Section 7-301 of the City's Code. The Applicant may exceed the monthly aggregate by up to ten (10%) percent provided the Applicant's annual aggregate of schedule II substances does not exceed 60,000 unit doses Applicant agrees to file an affidavit with the Police Chief on the seventh day of the month following execution of this Agreement and on the seventh day of each month thereafter for the prior month identifying the types and quantities of each schedule II substances as defined in Section 7-301 of the City's Code (a) that were purchased during the reporting period, (b) that were sold in the reporting period, and (c) that were stored at or in the Project site.

2.

Applicant also agrees to allow the City, through its Police Department the right to inspect the premises, with or without prior notice and without the necessity of a warrant or other legal document, at any time during regular business hours for the purpose of determining compliance with the terms of this Agreement.

3.

Applicant further agrees that in the event a criminal conviction for violation of Chapter 893 exists for any of its principals, officers and/or pharmacists, that Applicant shall immediately cease operations as set forth in Paragraph 4 below.

4.

Applicant agrees that notwithstanding the provisions of Section 7-49 of the City Code, upon determination of a conviction under Chapter 893 or upon other written notice of Applicant's non-compliance with this Agreement of the City Code as determined by the City, Applicant shall immediately cease any and all operations or activities at the Project site. In the event that Applicant does not immediately cease such operations or activities, Applicant hereby consents to the closure of the Project by the City, without any liability to the City, and Applicant shall pay any costs incurred by the City to effectuate such a closure, including, but not limited to, attorney's fees and costs, and any such costs shall accrue interest at the then existing statutory rate of interest. Applicant further agrees that it freely and voluntarily waives any right of appeal of such a determination of non-compliance with the terms hereof as it relates to the storage or dispensing of schedule II substance. However, Applicant shall retain the right of appeal, as set for in Section 7-49(b) of the City Code, for any other violations of the requirements of Sections 7-32 and 7-42 of the City Code.

5.

Applicant further agrees that in addition to any of the penalties set forth in Section 7-50 of the City Code, in the event the LBTR is revoked for violation of the terms of this Agreement, Applicant voluntarily agrees that it, its owners and operators directly or indirectly, will not apply for any other LBTR within the boundaries of the City for a period of two (2) years.

6.

Applicant agrees to defend, indemnify and hold harmless and forever release and discharge the City and its agents and authorized personnel from any and all liability that may arise out of, or in connection with, the issuance of said LBTR and any of the terms of this Agreement, including the costs of any suit, attorney's fees and other expenses in connection therewith, and including but not limited to any liability resulting from the negligence of the City and its agents and authorized personnel.

7.

The obligations of Applicant under this Agreement shall become operative and effective only upon the execution of this Agreement.

8.

Applicant acknowledges that the acceptance of this Agreement is a complete estoppel on it, its heirs, and assigns as to any rights, real, apparent or otherwise, that Applicant may have to challenge the efficacy of any conditions hereof and/or any conditions noted on the LBTR. Applicant agrees that it will notify any and all successors and assigns of the terms hereof and that failure to do so will constitute an independent breach of this Agreement.

IN WITNESS WHEREOF, ____________ does hereunto set its hand and seal on the year and date first above written.

	APPLICANT: ____________
	By: ____________ , its
	_____
	ATTEST: ____________ (SEAL)

 

Subscribed and sworn to before me this ____________ day of ____________ , 2011, by ____________ , as ____________ of ____________ , who is ____________ personally known to me or ____________ produced identification.

Type of identification produced:

Notary Public, State of Florida at Large

My Commission Expires:

ACCEPTED BY CITY THIS ____________ DAY OF ____________ , 2011.

BY: ____________
Bruce J. Moeller, City Manager

APPROVED AS TO FORM:

BY: ____________
Kimberly A. Kisslan, City Attorney

(Ord. No. 512-11-B, § 3, 6-28-11)